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Turkey updates

Arbitration & ADR

Mandatory mediation for commercial disputes was recently introduced by the Law on Legal Procedures to Initiate Proceedings for Monetary Receivables arising out of Subscription Agreements. As a result, an application for mediation is a condition for bringing a legal action before the courts, and a case will be dismissed on procedural grounds if the claimant in a commercial action fails to fulfil this obligation.

The United Nations Commission on International Trade Law Model Law adopts the principles of competence-competence and the separability of arbitration agreements. Under these principles, an arbitral tribunal may rule on its own jurisdiction, including any objection with respect to the existence and validity of an arbitration agreement. In 2001 the International Arbitration Law introduced these principles to Turkish legislation.

Under the International Arbitration Law, if a party initiates court proceedings to resolve a dispute which falls within the scope of an arbitration agreement, the counterparty can object to the court's jurisdiction based on said agreement. The submission of objections and the resolution of disputes concerning the validity of an arbitration agreement are subject to the Civil Procedure Law. If a court accepts such an objection, it will dismiss the lawsuit on procedural grounds.

The Istanbul Arbitration Centre (ISTAC) has provided dispute resolution services to Turkish and foreign entities through arbitration and other alternative dispute resolution processes since the introduction of the ISTAC Arbitration and Mediation Rules in 2015. The Global Arbitration Review has listed ISTAC among the institutions worth a closer look, and this recognition has strengthened its aspiration to become a regional hub for dispute resolution for companies and individuals from Europe, Asia and the Middle East.

In 2015 the 15th Chamber of the Court of Appeals held that courts cannot grant a preliminary attachment on the ground of a foreign court judgment, unless this judgment had been enforced in Turkey. The court's reasoning was that foreign court judgments and foreign arbitral awards can be executed in Turkey only if and when they are enforced in Turkey. However, a dissenting opinion in this decision stated that courts can grant a preliminary injunction before an enforcement decision has been finalised.

Banking

The Council of Ministers recently amended Decree 32 on the Protection of the Value of Turkish Currency. The amending decree introduced strict restrictions on foreign currency loans obtained from overseas or in Turkey. The provision of foreign currency indexed loans to legal entities or real persons is now forbidden. However, legal entities which generate no foreign currency income but have credit exposure equal to or above $15 million may obtain foreign currency loans without limitation.

Company & Commercial

Each January, the Central Bank determines and announces the default interest to be applied where parties fail to agree on such interest or when their agreement is or becomes invalid. According to the Central Bank's recent announcement in the Official Gazette, default interest has been set at 21.25% as of 1 January 2019, compared with 10.75% in 2018.

The Law regarding Procedures for Initiating Legal Proceedings for Monetary Claims deriving from Subscription Agreements, which introduces a mandatory mediation process for commercial disputes to the Commercial Code, was recently published in the Official Gazette. Mandatory mediation will apply to all lawsuits that fall within the scope of the new law; however, it will not apply to lawsuits pending before first-instance courts, regional courts of justice or supreme courts.

The Law amending Certain Laws to Improve the Investment Environment was recently published in the Official Gazette. In order to boost Turkey's investment environment, the law has introduced notable changes to a number of different laws, including the Law on Movable Pledges in Commercial Transactions.

The recent amendments introduced to the Notification Law have significantly broadened the scope of parties for which electronic notification is compulsory. Prior to the amendments, electronic notification was compulsory only for joint stock companies, limited liability companies and limited partnerships with capital divided into shares. In contrast, following the amendments, electronic notification is now compulsory for a wide range of real persons and legal entities.

The Law amending Certain Laws to Improve the Investment Environment was published in the Official Gazette on March 10 2018 with different enforcement dates for the various amendments. The amendments introduced to the Commercial Code and other related legislation are expected to result in a move towards using trade registries in the incorporation procedure, which should accelerate the process.

Competition & Antitrust

The Competition Board recently published its annual M&A status report, which outlines statistics concerning merger control decisions with regard to the number of transactions, the parties' country of origin, economic activities and transaction values. The Competition Board reviewed a total of 223 mergers and acquisitions in 2018, which is higher than average and constitutes a 21% increase compared with 2017.

The Competition Board recently published its reasoned decision on the application filed by Vodafone regarding an agreement signed with Superonline. The agreement concerns Vodafone and Superonline granting each other access to their respective servers for wholesale fibre-optic broadband services and providing support services to each other's customers where appropriate.

The Competition Board recently issued its decision regarding retailer TveK's acquisition of rival retailer D&R and its two subsidiaries. In its assessment of potential competition concerns regarding the acquisition, the board examined the relevant market sectors and geographical markets in which the two entities operated and whether the merger would result in TveK acquiring a dominant position.

The Competition Board recently concluded an investigation into allegations of abuse of dominance in the provision of online ad services to commercial customers for the sale and rental of real estate and vehicles. The board concluded by a majority that Sahibinden.com had abused its dominant position. The decision could set a landmark precedent in terms of the analysis of excessive pricing in the online sector and is the only decision of its kind globally to concern the online ads market.

The Competition Board recently published its reasoned decision following its examination of the Akarlılar family's acquisition of negative control in Mavi Giyim Sanayi ve Ticaret AŞ. In order to assess economic unity, the Competition Board had to examine the parties' economic and family ties; the foundation, composition and nature of these ties; any independent activities; and the parties' unity of interest.

Corporate Finance/M&A

Squeeze-outs in Turkey are regulated under the Commercial Code where they concern private companies and the Capital Markets Law where they concern publicly held companies. This article examines the different processes for carrying out squeeze-outs at private and publicly held companies, as well as the squeeze-out rights available to controlling shareholders and the squeeze-out merger process.

Firm

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